National Employment Standards

National Employment Standards snapshot part 1

The National Employment Standards (NES) are a set of minimum entitlements in the Fair Work Act 2009 (FW Act) that apply to most employees in Australia. The exceptions include employees in the public sector and, in Western Australia, employees of sole traders and partnerships.

In recent years, there have been several changes to the NES, including some significant variations to the original 10 NES and the addition of two new NES.

Following is a snapshot of the first five NES.

Maximum weekly hours

Maximum hours are 38 hours per week for full-time employees, or the agreed hours for part-time employees, plus employees can be required to work a reasonable number of additional hours.

Employees can refuse to work additional hours that are unreasonable.

Requests for flexible working arrangements

An employee with 12 months of service (including a casual employee) has the right to request a change in working arrangements if the employee is:

• pregnant,
• a parent or person who has responsibility for the care of a child of school age or younger,
• a carer (meaning someone who provides personal care, support and assistance to another person who needs it because of a disability, medical condition, mental illness, or because they are frail and aged),
• a person with a disability,
• aged 55 years or older,
• experiencing family and domestic violence, or providing care or support to a member of their family or household who is experiencing family or domestic violence.

An employer must consult with the employee and respond to the request within 21 days. The employer can only refuse the request on reasonable business grounds taking into account the factors set out in the NES (e.g. cost, practicality, significant negative impact on efficiency, productivity or customer service).

The Fair Work Commission can arbitrate a dispute about a request for flexible work arrangements if the employer and employee cannot resolve it themselves.

Casual employment

A casual employee with at least six months’ service (12 months for employees of small businesses) can notify their employer that they believe they are no longer a casual employee and that their employment should be changed to permanent full-time or part-time.

The employer must consult with the employee and respond within 21 days. There are only limited reasons that an employer can refuse, including that there are fair and reasonable business grounds.

Parental leave and related entitlements

Employees (including casual employees) are entitled to:

• 12 months of unpaid parental leave for employees who have completed at least 12 months’ service,
• up to 130 days of flexible unpaid parental leave,
• unpaid special parental leave,
• transfer to a safe job or “no safe job leave”,
• consultation where an employer makes a decision that will have a significant impact on the status, pay or location of the employee’s pre-leave position,
• guaranteed return to pre-leave position,
• unpaid pre-adoption leave,
• request up to an additional 12 months’ unpaid parental leave. Employers can only refuse on reasonable business grounds.

Personal/carer’s leave, compassionate leave and paid family and domestic violence leave

Personal/carer’s leave

Employees other than casuals are entitled to up to 10 days of paid personal/carer’s leave (PCL) per year (pro rata for part-time employees). PCL accrues progressively during each year of service. There is no limit on the amount of PCL that can be accrued. PCL can be taken if an employee is unfit for work (personal leave) or to care for an immediately family or household member (carer’s leave).

Casuals, and other employees who have used up all of their paid PCL, can take up to two days’ unpaid carer’s leave per occasion.

Employees must notify their employer if taking PCL and must provide evidence to justify the leave if required by their employer.

Compassionate leave

Employees are entitled to two days of compassionate leave per occasion. Compassionate leave is paid for full-time and part-time employees and unpaid for casuals.

Notice and evidence requirements apply.

Family and domestic violence leave

All employees (including casuals) are entitled to up to 10 days of paid leave per year to deal with the effects of family and domestic violence.

Notice and evidence requirements apply.

Key take aways

• The NES are fundamental entitlements for most employees, so it is crucial that employers are familiar with their obligations and seek advice if in doubt about how the NES apply to their workforce.
• There are significant financial and other penalties for employers who contravene the NES, including maximum penalties for companies of between $99,000 for some contraventions and $4,950,000 for serious contraventions that result in an underpayment of wages.
• The Fair Work Ombudsman’s website has a wealth of free information about the NES, including articles, templates and a library of common questions and answers.